A review of Zimbabwe's draft minerals policy by ZELA

A REVIEW O F ZIMBABWE'S
DRAFT MINERALS POLICY
“Transforming Comparative Advantage to Competitive Advantage”
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Author: Mutuso Dhliwayo
Reviewed by: Shamiso Mtisi
Published by: Zimbabwe Environmental LawAssociation (ZELA)
Copyright: 2014, Zimbabwe Environmental LawAssociation (ZELA)
This publication may be reproduced in whole or in part and in any
form for educational or non-profit uses,without special permission
from the copyright holder, provided full acknowledgement of the
source is made.No use of this publication may be made for resale or
other commercial purposes without the prior written permission of
ZELA.
Disclaimer: The views expressed herein do not necessarily represent those of
ZELA but those of the author.
Year of Publication: 2014
Layout Artist: Dorcas Chamatunhu
Available from: Zimbabwe Environmental LawAssociation (ZELA),
No.26B, Seke Road, Hatfield, Harare.
Email: zela@mweb.co.zw, info@zela.org
Website: www.zela.org
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TABLE OF CONTENTS
LIST OF ACRONYMS Page iii
EXECUTIVE SUMMARY Page 1
INTRODUCTION Page 3
BRIEF OUTLINE OF PROBLEMS WITHIN ZIMBABWE'S
MINING SECTOR Page 5
ANALYSIS OF THE PROVISIONS OF THE DRAFT
MINERALS POLICY Page 16
RECOMMENDATIONS Page 27
CONCLUSION Page 33
BIBLOGRAPHY Page 34
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LIST OF ACCRONYMS
AMV Africa MiningVision
CBOs Community Based Organisations
CSOs Civil Society Organisations
EESCR Environmental, Economic, Social and Cultural Rights
EIAs Environmental Impact Assessments
EITI Extractive Industries Transparency Initiative
EMA Environmental Management Act
EMA Environmental Management Agency
FDI Foreign Direct Investment
HRIAs Human Rights Impact Assessments
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
IEEA Indigenisation and Economic Empowerment Act
MMCZ Minerals Marketing Corporation of Zimbabwe
MMMD Ministry of Mines and Mining Development
MTP Medium Term Plan
SWF Sovereign Wealth Fund
UNGPs United Nations Guiding Principles
ZELA Zimbabwe Environmental Law Association
ZIMASSET Zimbabwe Agenda for Sustainable Socio–Economic Transformation
ZMDC Zimbabwe Mining Development Corporation
ZMRTI Zimbabwe Mining Revenue Transparency Initiative
ZPWMA Zimbabwe Parks and Wildlife Management Authority
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ACKNOWLEDGEMENTS
The author would like to express gratitude to all the funding agencies that provided ZELA
with the financial resources to carry out this research and analysis of the Draft Minerals
Policy of 2013. The author would also like to thank all ZELA staff members for their
logistical and editorial support.A lot of the positions in this research paper were also
informed by interactions with community groups and civil society actors,hence the author
is very grateful to them all.
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EXECUTIVE SUMMARY
That Zimbabwe has a significant and diverse mineral resource base is not in doubt. With
estimates that Zimbabwe has the second largest reserves of chrome and platinum after
SouthAfrica and potential to supply about 25% of the global diamond market,mining can
play a catalytic role in Zimbabwe's economic revival, stabilization and eventual growth.
However, Zimbabwe's economic resource base represents a comparative and not a
competitive advantage. The question therefore is what does Zimbabwe need to do to
ensure that this comparative advantage based on its mineral resource base is turned into a
competitive advantage? It is against this background that the Zimbabwe Environmental Law
Association (ZELA) commissioned a review of the draft Minerals Policy with a view of
understanding to what extent it will help Zimbabwe unlock economic development from
its vast mineral resources.
The review highlights some of the problems that are stifling the potential of Zimbabwe's
mineral resource base to contribute to economic development. Chief among these
problems is an archaic and colonial piece of legislation in the form of the Mines and
MineralsAct,which is regarded as the weakest link. TheAct which was enacted in 1961 is
oriented towards mineral resources exploitation with little or no regard to sustainable
development.While mining itself can never be sustainable,it can contribute to sustainable
development through the investment of generated revenue in human and physical capital.
Other problems include lack of transparency and accountability, lack of access to
information and lack of value addition and beneficiation. Furthermore, the Mines and
MineralsAct fails to realize and acknowledge the role of other stakeholders in the mining
sector other than the traditional ones that include the state and the private sector. These
other important stakeholders include Civil Society Organisations, Community Based
Organisations andArtisanal and Small Scale Miners.
The review also assesses the provisions of the draft Minerals Policy.The assessment is
based on international principles and initiatives that promote good governance of mineral
resources.These principles are transparency,accountability and good governance,and the
initiatives include theAfrica MiningVision,the Extractive IndustriesTransparency Initiative,
the Natural Resources Charter and the United Nations Guiding Principles on Business and
Human Rights.The assessment concludes that to a larger extent,the draft Minerals Policy
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has some very progressive provisions that promotes good governance of mineral
resources. The progressive provisions include transparency and accountability through
the adoption of the Extractive Industries Transparency Initiative, access to information,
value addition and beneficiation. Furthermore, it also recognises the role of other
stakeholders in the mining sector other than the traditional ones. Communities, Civil
Society Organisations and Artisanal and Small Scale Miners are recognised as important
stakeholders. The assessment also highlights the corrective measures that the
Government of Zimbabwe is already implementing although the draft Mineral Policy is yet
to be finalized.These measures include the call by the Minister of Finance in his 2014
National Budget Statement for the adoption of the Extractive Industries Transparency
Initiative,the moves by the Ministry of Mines and Mining Development to ban the export
of unprocessed platinum and uncleaned diamonds,plans to recognize artisanal miners and
the introduction of the SovereignWealth Fund Bill in Parliament.
While the draft Minerals Policy has some very progressive provisions, the review makes
some recommendations that can strengthen it before it is finalized by the Ministry of
Mines and Mining Development and its adoption by Cabinet.These recommendations
include the carrying out of a Human Rights ImpactAssessment before the commencement
of mining activities, the representation and participation of Community Based
Organisations and Civil Society Organisations in the policy and decisions making
processes in the form of the Minerals Development Board and the development of a
model Mining Agreement to help in contract negotiations. Further recommendations
include disclosure of beneficial ownership, limiting the application of stabilization clauses
and requirement that mining companies be taxed separately for each mining project that
they develop in Zimbabwe. The gender impacts of mining also need to be strengthened.
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INTRODUCTION
The mining sector has been touted as possibly providing the foundation for Zimbabwe's
economic recovery, stabilization and eventual growth by creating jobs through value
addition and beneficiation and generation of revenue for the government. To a greater
extent, this potential of the mining sector to contribute to economic development is
dependent and influenced by the legal and policy framework. Depending on how the laws
and policies are framed, they can either facilitate or undermine Zimbabwe's ability to get
maximum benefits from its diversified and significant mineral resource base.Cognisant of
the role of laws and policies in the exploitation of mineral resources,the Government of
Zimbabwe is in the process of reforming its mining laws and policies so as to unlock
economic development.The current and proposed legal and policy reforms in the mining
sector can be construed as evidence that there is realization that the country is not getting
maximum benefits from its vast mineral resource base which has remained a comparative
as opposed to a competitive advantage.
The objective of this review is to analyse Zimbabwe's draft Minerals Policy to determine
the extent to which it can help the country to unlock its vast mineral potential so that it
becomes a key driver for economic growth.The review starts by highlighting some of the
problems within Zimbabwe's mining sector that have held back its potential. In other
words,it looks at the mischief that the proposed draft Minerals Policy is meant to cure.The
objective here is not to give a detailed account of the problems.These problems have been
a subject of research by the Zimbabwe Environmental LawAssociation (ZELA) and other
organisations working in the extractive sector in Zimbabwe. Rather the objective is to
highlight these problems and use them as a benchmark when analyzing the provisions of
the draft Minerals Policy.These problems include an old, archaic and colonial piece of
legislation in the form of the Mines and Minerals Act (Chapter 21:05) of 1961, which is
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oriented towards mineral resource extraction rather than sustainable development.The
Act is out of sync with the sheer weight of emerging issues and Zimbabwe's aspirations as a
country for a mining sector that is development oriented.The current legal and policy
framework is characterized by opacity and secrecy without providing access to
information, no provisions for transparency and accountability, lack of value of addition/
beneficiation and does not provide for good mineral resources governance.In addition,it
does not provide linkages –backwards, forwards and sideways to other sectors of the
economy,public participation in the policy and decision making processes and it does not
recognize the role of other stakeholders in the mining sector such as communities and civil
society organisations.Furthermore,it does not recognize and capacitate artisanal miners
on environmental and social sustainability.
Secondly,the review analyses the strengths and weaknesses of the provisions of the draft
Minerals Policy.This will be done by benchmarking it against international principles and
initiatives that promote best practices on the governance of natural resources including
minerals.The principles include good governance, transparency and accountability while
the initiatives include the African Mining Vision (AMV), the Extractive Industries
Transparency Initiative (EITI), the Natural Resources Charter and the United Nations
Guiding Principles on Business and Human Rights (UNGPs). Zimbabwe's new
constitution also has progressive provisions that have implications on mineral resource
governance and reference will be made to them.
Thirdly, the review will make recommendations on how the draft Minerals Policy can be
strengthened so that it can help to unlock economic development from Zimbabwe's
mineral resources.One of the key objectives of the draft Minerals' Policy is to overhaul the
current Mines and MineralsAct and introduce a new Mines and MineralsAct. It is hoped
that the recommendations emerging from this review will be taken on board by the
Ministry of Mines and Mining Development and inform the development of a new and
comprehensive Mines and MineralsAct after the finalization of the draft Minerals Policy by
the Ministry of Mines and Mining Development and adoption by Cabinet. The envisaged
new mines and minerals legislation is variously described in the draft Minerals' Policy.
These include a Minerals Development Act, Mines and Minerals Act and Minerals
Development Law.
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That Zimbabwe has vast economic potential based on its significant and diverse mineral
resource base is not in doubt. Zimbabwe's significant and diverse mineral resource base
has resulted in the coinage of the term “the Persian Gulf of Minerals”. Zimbabwe is
estimated to have the second largest global reserves of platinum after SouthAfrica and also
the second largest global reserves of chrome after South Africa estimated at about 10
billion tones. Zimbabwe is also estimated to have massive quantities of diamonds which
when fully exploited has the potential to supply 25% of the global diamond market. Apart
from platinum, diamonds and chrome, Zimbabwe has other significant mineral resources
that include gold, nickel, asbestos, black granite and iron ore.While Zimbabwe's mining
sector has vast economic potential, it is blighted by a plethora of problems which if not
addressed through comprehensive legal and policy reforms will militate against this
potential.
These problems include but are not limited to lack of transparency and accountability in
the whole mining value chain, poor negotiation of contracts which results in skewed
contracts that fail to unlock maximum value to the country and communities,lack of value
addition and beneficiation, lack of access to information by stakeholders, poor
management of generated revenue, non recognition of critical stakeholders like
communities and Civil Society Organisations and violation of community rights.Another
problem is failure by the Act to recognize artisanal miners despite their substantial
contribution to livelihoods and economic development in Zimbabwe,especially in the gold
mining sector.
An old and archaic legal framework lies at the heart of problems in Zimbabwe's mining
sector.While there is a plethora of laws that have implications on the mining sector, this
paper will focus on the Mines and MineralsAct (Chapter 21:05) as an embodiment of the
regulatory framework that is mainly responsible for holding back Zimbabwe's economic
potential in the mining sector. More often than not, problems affecting the ability of
developing countries like Zimbabwe to maximize benefits from their mineral resources is
BRIEFOUTLINEOFPROBLEMS WITHINZIMBABWE'SMININGSECTOR
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called the natural resources curse theory.It is theAchilles heel in Zimbabwe's desire to get
maximum benefits from it mineral resources.
The natural resources curse theory describes a situation where natural resources wealth
like minerals fail to translate into broad based economic development benefitting all
sectors of the economy and the greater majority of the population. However,there is an
emerging school of thought that says that what these countries are actually suffering from
is the curse of poor laws and policies. In other words,developing countries are failing to
optimally benefit from their mineral resources due to poorly crafted laws and policies.
TheAfrica MiningVision aptly captures and summaries this problem:
Overally, the key strategy in optimizing a resource endowment is around the
resource regulatory regime,which directly determines the relative division of the
spoils and indirectly influences the deepening of the sector through down and
upstream linkages to the local,national,and regional economies.
The Natural Resources Charter whose main objective is to help governments and
societies that are rich in mineral resources like Zimbabwe to manage them in a progressive
manner so as to unlock economic growth,greater benefit to citizens and in a way that does
not degrade the environment is also very clear on the role of laws and policies.The Natural
Resources Charter correctly observes that:
Fiscal policies and contractual terms should ensure that the country gets full
benefit from the resource, subject to attracting the investment necessary to
realize that benefit. The long term nature of resource extraction requires policies
and contracts that are robust to changing and uncertain circumstances.
Sadly, Zimbabwe's current Mines and Minerals Act does not seem to be alive to this fact.
The weaknesses of Zimbabwe's mining regulatory framework have been widely discussed.
Revenue Watch Institute describes Zimbabwe's mining regime as lacking mechanisms to
promote public accountability in the mining sector. The former Minister of Finance
described the current Mines and MineralsAct as an obscure legal regime for its failure to
maximise economic benefits and called for its overdue amendments to be legislated. In
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equally scathing remarks,the former Deputy Prime Minister described theAct as criminal
for its failure to empower the people and their communities and urged for its urgent
amendment. In his speech during the opening of the Eighth Parliament, the President
indicated that the Mines and Minerals Bill would be one of the Bills to be discussed by
Parliament during this session. He pointed out that the objective of the Bill is to boost
mineral development and maximize benefits accruing to the country from its rich mineral
endowment. This is a tacit acknowledgment that the country is not getting maximum
benefits from its mineral resources under the current legal and policy framework codified
in the Mines and Minerals Act. Against this background, it is imperative and urgent for
Zimbabwe to reform its mining legislation if it is to unlock economic value and
development from its mineral resources.
Surprisingly, despite this overwhelming evidence that the Mines and Minerals Act in its
current state is an impediment to Zimbabwe's ability to get maximum benefits from its
mineral resources,efforts to reform theAct have been moving at a snail's pace.The review
of theAct through the Mines and Minerals Amendment Bill has been proposed for over
10 years without being finalized. The Medium Term Plan (MTP) had proposed the
finalization and legislation of the proposed amendments by the end of 2011.However,it is
2014 and nothing has been finalized.
The Mines and Minerals Act, which is the principal Act regulating mining activities in
Zimbabwe is a very old piece of legislation.It was enacted in 1961 and since then there has
not been any comprehensive review and amendment of the Act. Zimbabwe recently
adopted a new Constitution to replace the Lancaster House Constitution of 1979.
Among the reasons given for the passage of a new Constitution is that the Lancaster
House Constitution was too old and had been weighed down by the sheer weight of
emerging issues.If this is true of a 1979 document,then what more of a law like the Mines
and MineralsAct,which was enacted in 1961?
Most of the issues that the Act is meant to address were not regarded as topical when it
was enacted. In its current state, the Act is oriented towards mineral extraction and not
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their sustainable management. International Covenants and Declarations that provides a
framework for the protection and realization of human rights like the International
Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic,
Social and Cultural Rights (ICESCR) and the Rio Declaration on Environment and
Development were not yet in place. Given this background,it is therefore not surprising
that the Act is out of breath to address the problems highlighted above as affecting the
mining sector.
The greatest threat to the ability of the mining sector to contribute to Zimbabwe's
economic development is the cancerous low levels of transparency and accountability.
This opaqueness permeates the whole mining sector although it is mainly pronounced in
the diamond mining sector. Commenting on transparency and accountability in the
exploitation of the Marange Diamonds,the Parliamentary Portfolio Committee on Mines
and Energy noted that lack of transparency and accountability has been an ongoing issue
in the Marange Diamond Fields since the inception of formal mining in Chiadzwa.Lack of
transparency and accountability was cited in terms of the selection of joint venture
partners,the signing of contracts,production,marketing,fiscal contribution,smuggling and
leaking of diamonds as well as corporate governance.This means that it is a problem in the
whole mining value chain. The former Minister of Finance is on record lamenting the lack
of transparency and accountability in the diamond mining sector. Even the current
Minister of Finance has expressed similar sentiments as his predecessor. The
media both private and public and CSOs have also highlighted the lack of
transparency and accountability. A look at the Mines and Minerals Act shows that
principles of transparency and accountability are very alien to it despite the fact that the
Ministry of Mines and Mining Development identifies transparency and accountability as
two of its core values in its 5Year Strategic Plan of 2011-2015.
Poorly negotiated contracts are another hindrance to Zimbabwe's ability to optimally
benefit from its minerals resources. Contracts are very important in defining the terms of
an investment project and constitute a key instrument of governance of natural resources
including minerals. They determine the distribution of risks, costs and benefits of the
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project.They shape the extent to which the investment provides public revenues and
creates income generating opportunities through employment with the local economy.A
contract determines the extent to which a country benefits or fails to benefit from its
mineral resources. If properly negotiated, well designed and implemented, contracts can
maximize the contribution of mineral resources investment to sustainable development
goals to the benefit of the country. However, poorly negotiated, drafted and executed
contracts may impose unfavourable terms on the country and communities often for a
long period of time, sowing seeds of dispute and undermine the pursuit of sustainable
development goals like poverty reduction and environmental sustainability. Poor
contracts are mainly as a result of lack of competency to craft good mining deals for the
country and corruption.
Zimbabwe has many examples of poorly negotiated contracts. These include the
ZIMPLATS, ZISCO-Essar and Chiadzwa diamond mining deals. Most of the disputes
between the government and investors like the long running dispute between the
government and ZIMPLATS and the disputes that have affected the ZISCO-Essar
agreement are evidence of poorly negotiated contracts.The former Minister of Finance,
Tendai Biti described the ZIMPLATS contract as exploitative and questioned the legal
soundness of the negotiators.
The root cause of these poorly negotiated contracts lies in the Mines and MinesAct.The
regulatory framework should be addressed in order to promote transparency and
accountability in the mining sector.Due to the absence of clear provisions on transparency
and accountability,mining contracts are negotiated in secrecy thereby making it difficult to
hold those who would have negotiated a bad deal for the country accountable.
Transparency and accountability in the negotiation of contracts increases a sense of
responsibility by the negotiators as they know very well that they will be sanctioned should
their decisions impact negatively on the livelihoods of people and the interests of the
nation at large.It also helps to curb the risk of corruption and mismanagement and is a key
anchor of democracy, good governance and sustainable development.
Transparency and accountability are very necessary in the mining sector because the
mineral resources belong to the citizens. State institutions like the Ministry of Mines and
Mining Development manage them on behalf of citizens.The main objective for calling for
transparency and accountability in the mining sector is to ensure that the exploitation of
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mineral resources benefit all Zimbabweans in line with the mission statement of the
MMMD. It must also be noted that transparency and accountability are not exclusive of
each other.Transparency is a pre-condition for accountability. Without access to timely,
accessible and credible information,there is no basis for accountability.
Lack of value addition and beneficiation is another major weakness of the Mines and
Minerals Act, which is holding back the potential of the mining sector to effectively
contribute to economic development. The Act does not make it mandatory for minerals
to be beneficiated before they are exported. Although Zimbabwe has a significant and
diversified mineral resource base,the bulk of these minerals are exported as raw materials,
which fetch low prices on the international market. The true value of these mineral
resources is only fully realized after they have been processed. The value of minerals
appreciates immensely throughout the beneficiation process.Furthermore,value addition
and beneficiation create new jobs and lead to other downstream benefits.
The former Minister of Finance clearly articulated how Zimbabwe is losing out on value
addition when he noted:
The low level of value addition activities, particularly in the mining sector and
agricultural products, has resulted in the country being unable to realize
meaningful benefits from its endowments hence compromising employment
creation, foreign exchange earnings and economic growth among others. It will
therefore be necessary to institute further measures to discourage exportation of
raw products that have potential for value addition inside the country.
The President of Zimbabwe is also on record lamenting the lack of value addition and
beneficiation. However, until recently there was concern that talk of value addition and
beneficiation was not backed by action and that there was no vision on how this should be
done. The President and the former Minister of Finance's voices seemed to be lone voices
in the wilderness and this may explain why no concrete action has been taken to value add
and beneficiate Zimbabwe's mineral resources.
A good example of how the Mines and Minerals Act lies at the heart of the failure by
government to take concrete measures to promote beneficiation and value addition is the
ZISCO – Essar deal that was signed between the Government of Zimbabwe through the
Ministry of Industry and Commerce and Essar Africa Holdings. The deal was meant to
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revive the operations of the Zimbabwe Iron Steel Company (ZISCO).When allegations
surfaced that Essar Africa Holdings were not interested in reviving the operations of
ZISCO but in Zimbabwe's huge iron ore reserves which they wanted to export to
support their operations worldwide and that the deal was just a smokescreen, the leading
negotiator on behalf of the Government of Zimbabwe came under a lot of criticism for
not making beneficiation and value addition one of the key requirements. Appearing
before the Parliamentary Portfolio Committee on Industry and Commerce, the then
Minister ofTrade and Industry,professorWelshman Ncube argued in his defense that the
Mines and MineralsAct did not provide for valuation of mineral resources before a licence
could be granted.In his opinion, it would be unfair and unprecedented for value addition
and beneficiation to be used as a precondition. Reprehensible as this may have sounded,
the Minister was very right in his reading and interpretation of the Mines and MineralsAct
with regards to value addition and beneficiation.
While lack of value addition and beneficiation is evident in all minerals mined in Zimbabwe,
it is most pronounced in the diamond and platinum mining sectors. With the potential to
supply 25% of the global diamond market, Zimbabwe is now ranked as one of the top
producers of rough diamonds.However,despite having risen to the position of one of the
top producers of rough diamonds globally, Zimbabwe has not generated any significant
jobs and revenue from its exploitation and trade in diamonds. This is mainly due to the
fact that the majority of the diamonds are exported in their raw form.There has not been
any significant value addition and beneficiation of diamonds in Zimbabwe in the form of
cutting,polishing and making of jewellery. Although there have been efforts towards this
end, they have been half-hearted. Examples to value add and beneficiate Zimbabwe's
diamonds include Minerals Marketing Corporation of Zimbabwe (Diamond Manufacturers)
Regulations. The regulations requires the Minerals Marketing Corporation of Zimbabwe
in terms of section 3(1) to set aside not more than 10% of gem quality diamonds,not more
than 10% of industrial diamonds for sale to local diamond manufacturers.These local
diamond manufacturers are required to cut, polish and crush or otherwise process the
rough diamonds for gain or reward. The Zimbabwe Diamond Policy, 2012 is another
attempt at beneficiation.The policy states that the Government shall reserve a quota of all
diamonds produced in Zimbabwe for local polishing and jewellery manufacturing.
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However,these limited attempts at value addition and beneficiation have faced a number
of stumbling blocks.This include the preference by the licenced local cutters and polishers
to export the raw diamonds rather than cut and polish them as they are paid higher
prices outside and this resulted in the cancellation of the licences in 2011.High licencing
fees that cannot be afforded by the intended beneficiaries and supply of poor quality gems
have all contributed to making local value addition and beneficiation of diamonds
unattractive resulting in the export of jobs.In 2011 for example,it was reported that the
processing of Marange diamonds had created an estimated 60 000 jobs in the Indian state
of Surat. It is estimated that Zimbabwe loses about US$ 14 billion in potential revenue a
year as a result of its failure to beneficiate and add value to its diamonds.
Platinum mining is another good example where the country is losing out significantly due
to lack of value addition and beneficiation.Raw platinum has about 10 minerals in it. These
include gold, palladium, nickel, rhodium, copper, ruthenium, indium, cobalt and silver.
However, these other minerals are only separated when the platinum is processed.
Zimbabwe's rawplatinumisexportedtoSouthAfricaforprocessingmeaningthatZimbabwe
maybemissingoutontheothermineralsthatarerecoveredduringtheprocessing.
Fortunately,the Government of Zimbabwe has come to realize the need and urgency for
value addition and beneficiation.The new Minister of Mines and Mining Development has
made value addition and beneficiation the hallmark of his tenure. The new economic blue
print, the Zimbabwe Agenda for Sustainable Socio – Economic Transformation (ZIM-
ASSET) is also alive to the need for value addition. It establishes 4 clusters and one of the
clusters is onValueAddition and Beneficiation,which includes the mining sector.The other
clusters include Food Security and Nutrition, Social Services and Poverty Reduction and
Infrastructure and Utilities.It is estimated that the value addition in the various economic
sectors will unlock US$5 billion worth of revenue annually. The value addition and
beneficiation fever seems to be gaining ground with reports that platinum firms are
finalizing plans to build a US$3 billion platinum refinery. The plans to build a platinum
refinery are being spearheaded by the Platinum Producers' Committee,which is made up
of Unki,Mimosa and Zimplats who are all involved in platinum production.
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Another problem is that the Mines and MineralsAct is not sufficiently representative and
participatory.When the Act was enacted in 1961, the state and the private sector were
regarded as the only players in development.Civil Society Organisations and communities
were mainly regarded as non-players in the development process. As a result of this
perception, the current Mines and Minerals Act is mainly a reflection of state and mining
company interests at the expense of other stakeholder's interests like communities and
CSOs.
A key indicator of this thinking is the exclusion of these stakeholders to participate and be
represented in the policy and decision-making processes and institutions.Institutions are
key to achieving sustainable development in natural resources management including
minerals.It is through participation in these institutions that stakeholders have access to
information, have influence in the decision-making processes and are able to influence
benefit sharing mechanisms. It therefore follows that if communities and CSOs are to
effectively participate in mineral resource governance, they have to participate and be
represented in the policy decisions making institutions.
One of the key institutions established under the Mines and Minerals Act is the Mining
Affairs Board. The board is made up government representatives in the form of the
Ministry of Mines and Mining Development, industry through the Chamber of Mines,
Commercial Farmers' Union and a member of the Institute of Chartered Accountants.
While other stakeholders are represented and participate in the board,communities and
CSOs are conspicuous by their absence.The membership of this institution distances
communities and CSOs from mining as if they are not interested and affected
stakeholders. It makes it difficult for their concerns and interests like access to
information,violation of community rights and benefit sharing to be articulated and taken
at the highest decision making level. While the argument of representative democracy can
be raised,it cannot be justified,as there are no clear structures through which the Mining
Affairs Board is directly exposed to the issues of concern to communities.Infact,it means
that the board deliberates on mining business based on the views of government
technocrats and the private sector without taking into account the interests of CSOs and
communities.
Ironically, the decisions made by this board in which they are neither represented nor
participate in have important implications in their participation in mineral resource
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governance. In any case, there is now a move towards participatory democracy and
communities and CSOs should be represented,participate and speak on their own instead
of relying on other interested and affected stakeholders to speak on their behalf.In South
Africa for example, the Minerals and Petroleum Resources Development Board, which is
the equivalency of the Mining Affairs Board, include one person representing CSOs and
two people representing Community Based Organisations.
The failure by the Mines and Minerals Act to recognize communities as important
stakeholders in the mining sector has resulted in the marginalization of communities from
natural resources governance. This marginalization is evident in a number of ways.These
include the violation of communities' Environmental,Economic.Social and Cultural Rights
(EESCR),denial of access to information related to mining activities,water pollution, loss
of grazing and agricultural land,desecration of cultural sites and involuntary resettlement
without the payment of fair and adequate compensation. The water pollution in the
Marange Diamond Fields is a subject of ongoing court proceedings. The Mines and
Minerals Act does not protect and promote community rights. Simply put, the Mines and
Minerals Act is an antithesis of community rights. It is the major cause of problems
affecting community rights.
Forcible eviction and relocation without fair and adequate compensation is one of the
major problems affecting communities in mining areas.Although the Mines and Minerals
Act makes provisions for the compensation of communities that have been evicted to
pave way for mining, its not very clear when this compensation should be paid either
before,during or after the process and also its fairness and adequacy.This lack of clarity on
these issues has resulted in untold sufferings for communities in mining areas. In the case
of Malvern Mudiwa and New Chiadzwa v Mbada Mining (Private) Limited and Others,
ZELA sought through an urgent chamber application an interdict against the respondents,
that is the mining companies,the Ministry of Mines and Mining Development and Ministry
of Local Government and,Urban and Rural Development relocating communities from the
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Chiadzwa area in Marange to ARDATransau until an agreement on compensation issues
had been reached.The learned judge did not grant the order sought on the basis that those
responsible for paying compensation had not refused to do so although no agreement had
been reached.Since then,over 1 800 households have been relocated and compensation
issues are still pending. The United Nations Basic Principles and Guidelines on
Development Based Evictions and Displacement are very clear on how displacement
and relocation of communities should be done and how fair and adequate compensation
for affected communities can be worked out.
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ANALYSIS OFTHE PROVISIONS OFTHE DRAFT MINERALS POLICY
The previous section highlighted the problems blighting the mining sector as a result of a
weak legal and policy framework as codified in the Mines and MineralsAct and how this is
affecting the sector's ability to optimally contribute to economic development. This
section focuses on analyzing the provisions of the draft Minerals Policy.The objective of this
analysis is to determine to what extent the draft Minerals' Policy,which is going to influence
and shape the development of a new and comprehensive Mines and MineralsAct addresses
these shortcomings. The analysis of the progressiveness of the provisions of the draft
Minerals Policy or lack of it,will be measured against international principles and initiatives
that promote best practices on the governance of natural resources including minerals.
The principles include good governance, transparency and accountability and public
participation.The initiatives include Extractive IndustriesTransparency Initiative (EITI),the
Natural Resources Charter and the United Nations Guiding Principles on Business and
Human Rights. At the national level, reference will be made to the Zimbabwe Mining
RevenueTransparency Initiative (ZMRTI) and the new constitution of Zimbabwe.Both the
ZMRTI and the new constitution have some very good provisions, which have some
implications on good governance of mineral resources, which is the ultimate objective of
legal and policy reforms.Good governance of natural resources including minerals has now
been recognized as critical for sustainable development.
While the term good governance is widely used in the development discourse,there is no
single exhaustive definition of the term. Governance is defined as “the complex set of
norms, institutions, and processes that determine how power and responsibilities are
exercised, how decisions are taken and how citizens participate in the management of
natural resources”. In very simple terms, governance of natural resources can be
understood to mean who has power,who has influence and decision making capacity and
how decision makers are held accountable for their commissions or omissions.However,
governance on its own is not enough.What is important is the process by which decisions
are made or the quality of governance known as good governance. Good governance is
underpinned by a number of values and principles.These include public participation in the
policy and decision making processes,transparency and accountability. This lack of a clear
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definition has resulted in people talking more about the values and principles of good
governance rather than what it means.
For purposes of this research,a working definition of good governance has been adopted.
Good governance is defined as:
The exercise of public authority with regard to society through the agencies of
government–executive,legislature and judiciary in the context of the institutional
and policy framework in place.It is about the process by which bargains between
the state and society are made including policies and institutions and how they are
subsequently implemented and monitored by organisations.
The vision of the draft Minerals Policy is based on the vision of the Africa MiningVision.
The anchoring of the vision of the draft Minerals Policy on the vision of theAMV on its own
is very progressive.The AMV is in the process of moving from vision to realization and
countries are encouraged to reform their laws and policies guided by its provisions.The
AMV is the blue print on how Africa can use its vast mineral resources for social and
economic development. The vision of the draft Minerals Policy is a welcome departure
from the thinking in the current Mines and MineralsAct,which is focused on extraction of
mineralresourceswithoutlinkingittosustainablegrowthandsocio-economicdevelopment.
The vision has a number of aims.These include achieving downstream linkages into mineral
beneficiation and manufacturing. Under the section on problems affecting the mining
sector,in the Draft Minerals Policy,lack of value addition and beneficiation was highlighted
as one of the major weaknesses of the current Mines and Minerals Act. In addition, the
vision aims at achieving mutually beneficial partnerships between the state, the private
sector,civil society and communities.This is very much in line with theAMV,which calls for
tri-partite partnerships between these stakeholders in the mining sector.This progressive
provision in the draft Minerals Policy is contrasted with current Mines and Minerals Act,
which regards mining as the preserve of the state and the private sector.This thinking has
been the major causes of conflicts between communities and CSOs on one hand and
Government and the private sector on the other hand.
Furthermore, the draft Minerals Policy is aimed at achieving a vibrant, environmentally
friendly and socially sustainable artisanal and small-scale mining sector.This is another
welcome development when one takes into account the contribution of artisanal miners
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to economic development. This provision is in line with the AMV, which calsl for the
recognition and regulation of artisanal miners. The current Mines and Minerals Act
criminalises artisanal mining. It is important to note that the Government of Zimbabwe is
already taking steps to regularize the operations of the artisanal miners. The 2014
National Budget makes provisions for the regulation of artisanal miners through anAct of
Parliament and incentives including the allocation of a budget of US $100 million dollars for
capacity building as a way of plugging mining leakages. A Joint Taskforce which includes
representatives of artisanal miners, Ministry of Mines and Mining Development,
Environment,Water and Climate, Environmental Management Agency (EMA), Zimbabwe
Parks and Wildlife Management Authority (ZPWMA), Fidelity Printers and Refiners,
ZMDC and MMCZ has been put in place to explore ways of how the regulation of the
artisanal miners can be done.
The Draft Minerals Policy also calls for a well governed mining sector that is safe,healthy,
gender and ethnically inclusive,environmentally friendly,social responsible and appreciated
by surrounding mining communities (emphasis added).Again,this provision is a progressive
provision, which is based on the AMV. Currently, mining communities regard mining as a
curse rather than a blessing.The reason for this thinking is not difficult to understand.
Mining is associated with forcible evictions and relocation of communities without fair and
adequate compensation, loss of agricultural and grazing land, environmental degradation,
water and air pollution and lack of meaningful benefits hence their failure to appreciate it.
Mining can never become socially responsible and appreciated by communities without
considering them as stakeholders, without respecting their EESCR, without providing
them with access to information, involving them in the policy and decision making
processes and paying them fair and adequate compensation for the loss of their land.
The draft Minerals Policy Principles are also very reflective of the paradigm shift in mineral
resources governance. The policy principles are based on the principles of the new
constitution of Zimbabwe. The principles include good governance. As already pointed
out,good governance is critical in the management of natural resources including minerals.
Other policy principles that promote good governance of mineral resources include
equitable sharing of natural resources, which include minerals and equitable access by
all Zimbabweans to the country's natural resources. These principles underpins the
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thinking that natural resources including minerals resources belong to the whole nation
and every citizen should benefit from their exploitation and not only a few people who are
politically or economically connected commonly known as the power elites.
Another key policy principle in the Draft Minerals Policy is the requirement that
procurement and other government contracts,including mineral leases,should be done in
a transparent,fair,honest,cost effective and competitive manner. This principle requires
anAct of Parliament to be put in place to achieve this objective. As already highlighted,one
of the biggest problems that is holding back the comparative advantage of Zimbabwe's
mining sector to become a competitive advantage is limited transparency, which has
become a fertile ground for breeding corrupt activities.Lack of transparency is a problem
within the whole mining value chain beginning from the issuance of exploration licences,
mining leases and contract negotiation. The current Mines and MineralsAct does not make
provisions for contract transparency and this has affected Zimbabwe's ability to maximize
benefits from its diverse and significant mineral resource base.This principle is also in line
with the new EITI Standard,which calls for contract transparency. Implementing countries
are required by the new Standard to publicly disclose any contracts and licences that
provide the terms or information on the exploitation of mineral resources.This principle is
also in line with the Natural Resources Charter, which calls for transparent and
competitive award of contracts so as to secure maximum benefits and rewards.
Another principle derived from the new constitution is the right to a clean and healthy
environment. The new constitution provides that every person has a right to an
environment that is not harmful to their health or well being and to have the environment
protected for the benefit of present and future generations,through legislative and other
measures that prevent pollution and ecological degradation and promote conservation.
Mining activities are one of the biggest causes of environmental degradation and pollution
that negatively impact on communities' EESCR.This draft Minerals Policy principle,which is
based on a key constitutional provision, is therefore very progressive as it protects
community rights. If properly implemented, it can bring welcome relief to
communities in mining areas like the Marange Diamond Fields, the black granite
mining areas of Mutoko and the Great Dyke where communities are at the receiving
end of environmental problems associated with mining activities.The influence of the
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AMV is also evident in this principle.TheAMV calls for measures to address the negative
environmental,social and cultural impacts on communities as a result of mining.
The Minerals Governance section is very clear that the current Mines and MineralsAct is
based on a colonial regime that is not helping to promote mineral based economic
development. The section calls for the development of a new minerals regime, which
hopefully will be through a new Mines and Minerals Act.The section has a number of
provisions, which are aimed at promoting mineral resource governance. It calls for
enhanced participation by indigenous Zimbabweans in the mining sector and related
linkage industries and equitable access to the sector by all Zimbabweans with the
necessary skills irrespective of their gender or ethnicity. This provision is to a large extent
being influenced by the new constitution and the Indigenization and Economic
Empowerment Act (IEEA). While the intentions and objectives of the IEEA have been
widely viewed as being noble, it is the way in which it is being implemented that has
been problematic. This provision is calling for broad based participation if
indigenisation is to be meaningful.
Adverse social and environmental impacts of mining activities on communities have
already been highlighted and discussed.The Minerals Governance section calls for the
minimization of these negative social and environmental impacts of mining activities.It also
adds another important component on the health and safety of workers within the mining
sector.This provision is in line with the UN Guiding Principles on Business and Human
Rights,which calls on the state to protect the rights of workers and on business to respect
the rights of workers.
Artisanal and small-scale miners are also recognized as playing an important economic
role.The section calls for their support so that their activities can be done in a sustainable
manner to create employment, generate income and help in poverty reduction efforts in
the rural areas.
The marginalisation of affected people especially communities, from the decision-making
processes is one of the biggest criticisms leveled against the current Mines and Minerals
Act. Apart from the state and the private sector,theAct regards other actors as if they are
non-existent and this has been a major source of contestation. Marginalization is evident
through among things failure to consult communities, failure to respect their rights and
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failure to provide them with information that will enable them to make informed decisions.
The draft Minerals Policy addresses this problem by calling for the consultation of all
stakeholders and affected people from exploration through mining and post mine closure.
The policy is also alive to initiatives at the regional,continental and international levels that
can be used to promote mineral resource governance for accelerated growth and
development. Under theTransparent Benefits from Mining section, the EITI is specifically
mentioned as an initiative to promote transparency in the mining sector through the
provision of information on revenue flows and other benefits coming from the mining
sector. The draft policy recommends the progressive accession of Zimbabwe to EITI and
to adhere to its principles and procedures of the EITI Standard and the EITI Rules.The new
EITI Standard requires contract transparency and this will help to end the opacity and
secrecy surrounding deals in Zimbabwe's mining sector. With regards to transparency and
accountability, the 2014 National Budget Statement states that the Government of
Zimbabwe will embrace the World Bank's Extractive Industries Transparency Initiative.
This is a welcome departure from previous statements especially by the MMMD that
expressed outright rejection of the initiative in the past. Zimbabwe currently has a
domestic initiative called the Zimbabwe Mining RevenueTransparency Initiative (ZMRTI),
which is based on the EITI principles.The only difference is that the ZMRTI is a wholly
Zimbabwean initiative while EITI is international.The ZMRTI is regarded as the first step in
Zimbabwe's journey to join the EITI.
Illicit financial flows in the form of tax evasion and avoidance is a major problem in the
mining sector.It is estimated that Zimbabwe has lost a cumulative US$12 billion dollars in
the last three decades through illicit financial outflows ranging from secret financial deals,
tax avoidance and illegal financial activities. The draft Minerals Policy under the section on
Equitable and Competitive Fiscal Regime is alive to this scourge and provides that mining
companies with annual revenues above certain threshold levels will be required to undergo
periodic tax self audits.While the threshold is yet to be set,it is recommended that every
company that is carrying out mining activities in Zimbabwe irrespective of the size of its
annual income will be required to undergo this tax audit so as to disclose its revenues and
profits. The requirement that each company does a self-tax audit is also problematic.
Companies are getting significant benefits through tax avoidance and evasion and for the
government to expect them to police themselves is being unrealistic.The audit must be
carried out by independent auditors that are appointed by the government.
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The section on Transparent Benefits from Mining is very responsive to some of the
problems currently affecting the mining sector especially on transparency and equitable
sharing of benefits from the exploitation of mineral resources. One of the major
stumbling blocks in mineral resources governance in Zimbabwe is lack of access to
information. Transparency is the precondition for accountability. Transparency entails
having access to timely,accessible and credible information.Without information,there is
no basis for accountability. Through the draft Minerals Policy, the Government of
Zimbabwe commits itself to transparency through the provision of information on
revenue flows and other benefits obtained from the mining sector.This is in line with
Precept 2 of the Natural Resources Charter.The provision of information results in an
informed public. One of the renowned initiatives for providing information on revenue
flows from the mining sector is the EITI.The policy makes a commitment to progressive
accession to the EITI and to adhere to the principles and procedures of the EITI Standards
and EITI Rules.Zimbabwe is already implementing a domestic version of the EITI through
the Zimbabwe Mining RevenueTransparency Initiative (ZMRTI). The objectives of ZMRTI
include the generation of independently reconciled information for public dissemination.
The ZMRTI provides a foundation,which the Zimbabwean government can build on as it
progresses to join the EITI.
Failure to derive meaningful and equitable benefits from mining activities taking place in
their localities is one of the major sources of conflict between communities on one hand
and the state and the private sector on the other hand.Communities see more of mining
costs rather than benefits. Equity is one of the core principles and values of mineral
resource governance.The draft Minerals Policy is very progressive in this aspect.With
regards to benefit sharing,the policy provides that:
The Government of Zimbabwe will ensure that communities that are or could be
adversely affected by mining operations derive regular and significant benefits
from those operations. A predictable formula shall be put in place to determine
such benefits,which shall include but not be limited to revenue allocation,access
to employment, the provision of infrastructure for local use and resources for
local education and skills formation. Mining companies will be encouraged to
develop local supply chains for their purchases, thereby integrating themselves
into the local economy.
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The draft Minerals Policy provides for value addition and beneficiation under the forward
linkages and Regulatory Framework section. If Zimbabwe is to get full value from its
mineral resources, then beneficiation and value addition is a must. Fortunately, the
Government of Zimbabwe is already taking steps to address issues on value addition and
beneficiation in two sectors that it is losing out most due to lack of value addition and
beneficiation. The two sectors are diamond mining and platinum mining. The three
platinum mining companies in Zimbabwe namely ZIMPLATS, Unki and Mimosa were
compelled through a Government directive to submit platinum refinery plans to the
th
Ministry of Mines and Mining Development.The deadline expired on the 17 of January
2014 and by close of business, all the three platinum companies had complied with this
directive and submitted their refinery plans.The plans show that the platinum mining
companies intend to set up a refinery that will be fully operational by 2016. The period
between now and 2016 will be used to sort out logistical issues which include the need for
increased output of platinum production,financing and power supply.
The Government of Zimbabwe gave a similar deadline to diamond firms to come up with
plans for establishing diamond cleaning facilities.The deadline was 31 January 2014. The
rationale behind forcing diamond companies to set up cleaning facilities is to ensure that
the Government gets more in terms of revenue and those that failed to comply will face
punitive penalties. Once diamonds are cleaned, the issue of clarity is enhanced and this
helps in terms of value. Companies that fail to comply with this directive face punitive
penalty. While diamond cleaning is not the same as diamond beneficiation/ value addition,
the requirement for diamond firms to set up cleaning facilities is regarded as the first step
towards value addition and beneficiation. However, previous efforts towards diamond
value addition and beneficiation in the past have been hampered by very high fees that are
levied on cutters and polishers that made value addition unsustainable.At the moment,the
cutters are required to pay an annual registration fee of US $100 000 as annual registration
fee,an amount which is widely regarded as punitive. As a result of these high registration
fees, the diamond value addition and beneficiation efforts that were ushered in by the
Minerals Marketing Corporation of Zimbabwe (Diamond Manufacturers) Regulations
collapsed with over 70 firms that had registered for the cutting and polishing of diamonds
going out of business.
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The 2014 National Budget statement has additional measures to encourage diamond and
platinum beneficiation before export.These include the imposition of a 15% export tax on
unprocessed platinum and diamonds with effect from January 2014.
TheAMV highlights linkages – downstream,upstream and side stream as a way of ensuring
that mining is integrated to local economic development. This provision of the draft
minerals policy is aimed at achieving these envisaged linkages.
The section on Environmental Stewardship and Social Responsibility deals with the
negative environmental and social impacts of mining on the environment and communities.
To a larger extent,this section is influenced by Zimbabwe's current environmental laws and
policies especially the Environmental Management Act and the National Environmental
Policy and Strategies. The draft Minerals Policy provides that no significant mining
operations will be permitted without an environmental and social impact assessment
having been conducted,evaluated and approved. This is line with sections 97,98 and 99 of
EMA which requires Environmental ImpactAssessments (EIAs) to be carried out before
st
certain projects that are listed in 1 schedule are carried out.Mining is one of the projects
that require an EIA to be carried out before the commencement of mining activities.
The draft policy makes provisions for building capable institutions including geological
survey.This is a very good provision when one takes into account the fact that exploration
or geological survey is the lifeblood of mining.Without it,there will be no new discoveries
of minerals.Limited geological survey or exploration is also limiting Zimbabwe's ability to
fully leverage benefits from its mineral resources.Without geological data regarding the
quantity and quality of minerals,it is not possible to negotiate effectively with investors and
this is one of the major underlying cause of poorly negotiated contracts that are failing to
unlock value to the country. It is widely thought that the extent of the Marange diamond
deposits is not fully known by the Zimbabwe Government. Exploration requires a lot of
resources, skill and competence. Successful exploration and development unlocks the
mining sector's forward and backward linkages with many sectors of the economy which
include job creation, new infrastructure, increased government revenue that leads to
investment in social issues like education, health and other poverty alleviation initiatives.
Zimbabwe used to have a very good Geological Survey and the latest comprehensive
survey was done in 1990. To address this problem, the 2014 National Budget Statement
calls for the operationalization of the Exploration Company through funding and capacitating
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of the Geological Survey Unit.A total of US$1.5 million dollars was allocated for this purpose
inthe2014NationalBudgetStatement. Whilethemoneyisnotadequate,itrepresentsafirst
step.
The draft policy also makes provisions for investing for the future. There is need for
prudent management and investment of revenues generated from mining activities instead
of just using it to finance Government consumption.Currently,it is estimated that 70% of
Government budget goes towards the financing of the civil servants salary bill leaving
nothing for saving and investment. If mineral resources are to benefit both current and
future generations meaningfully, then they have to be invested efficiently in human and
physical capital for the creation of new wealth.Without investment, then mineral wealth
cannot be expected to contribute to economic development.Tony Hawkins adequately
captures the shortsightedness of not investing mineral rents when he notes that:
The critical requirement is ensuring that mineral rents are not used to finance
government consumption spending, or that the extent to which this occurs is
minimized. The reason is simple.Mining rents represent depletion of natural capital
andwheretheyareusedtofinanceconsumptionthecountryisconsumingitscapital.
One of the best ways of managing and investing for the future is through the creation of a
SovereignWealth Fund (SWF). Many natural resource rich countries have created SWF.
Botswana has the Pula Fund set up with revenue from diamonds and other minerals while
Norway has the Norway Government Pension Fund Global created from oil revenue.
Kuwait has a Reserve Fund for Future generations from its oil wealth while Libya has an Oil
ReserveFund.ZimbabweshouldalsocreateaSWFandboththecurrentandformerMinistersof
FinancehaveadvocatedforthisintheirNationalBudgetStatementssince2010.
The Government of Zimbabwe is already trying to make good the provisions of the draft
Minerals Policy through the SovereignWealth Fund (SWF) Bill. The objectives of the SWF
are to provide for the establishment of the SWF and to set out the powers of the Fund's
Board.The objectives of the Fund include making secure investments for the benefit of the
future generations of Zimbabwe.The SWF will be financed by money from a quarter of the
Government 's royalties on gold, diamonds, platinum, chrome and other minerals and
special dividends derived from the sale of diamonds.Future generations will benefit from
the Fund's support for development objectives,and fiscal and macro-economic stabilization,
anditscontributionstoGovernmentrevenuesfromthenetreturnsonits investment.
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While the idea of a SWF is very noble, there are some serious concerns regarding its
chances of success in the context of Zimbabwe’s current, economic, social and political
problems. A successful SWF is usually anchored on a sound legal framework,effective and
transparent revenue collection system,a stable and predictable environment that attracts
FDI and a country that have little or no international debt. Measured against these key
success factors, Zimbabwe is currently not an attractive FDI destination for a number of
reasons, which include political and lack of policy clarity especially on the Indigenization
and Economic Empowerment Act. Furthermore, Zimbabwe has a huge external debt
estimated at around 11 United States dollars.SWF are usually created from budget
surpluses.With such a huge external debt,it is difficult to understand where the savings for
the SWF will come from. Public service delivery in terms of water, health and sanitation,
infrastructure and education are in dire straits making it incomprehensible to think of
saving for future generations while the current generation is struggling to meet basic
needs.
In the absence of transparency and accountability and proper institutions to guide
investment decisions and the purpose of investment,there is fear that the creation of SWF
maybe a cover for looting of funds by corrupt elements. A cursory look at the composition
of the Sovereign Wealth Fund of Zimbabwe as provided for under section 6 of the
SovereignWealth Fund Bill shows that this fear may not be misplaced.
billion
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RECOMMENDATIONS
The research review has shown that the draft Minerals Policy has some very good
provisions which if properly and thoroughly implemented through the envisaged new and
comprehensive Mines and Minerals Act and regulations will go a long way in addressing
some of the problems in Zimbabwe's mining sector.The vision and general goals of the
draft Minerals Policy on minerals governance like aspiring for strong public participation,
bringing more Zimbabweans that were historically disadvantaged into the mining sector
through indigenisation, creating more transparency and accountability and avoiding
transfer pricing and other fiscal loopholes through equitable and competitive fiscal regime,
are all very positive and commendable.However,despite these good provisions the draft
Minerals Policy can be improved and strengthened before it is finalized by the Ministry of
Mines and Mining Development and adopted by cabinet
Firstly the draft Minerals Policy should require mining companies to carry out due
diligence on how their activities are likely to adversely affect community rights before they
commence mining activities.One of the best ways of carrying out due diligence is through
a Human Rights ImpactAssessment (HRIA). The mining sector especially diamond mining
has caused a lot of suffering to local communities by violating their EESCR, civil and
political rights through water and air pollution,loss of agricultural and grazing land through
relocation without fair and adequate compensation,failure to provide information and to
involve them in the policy and decision making processes.While the draft Minerals Policy
provides for Environmental ImpactAssessment (EIA),this is not enough.
A HRIA helps to mitigate the negative impacts of mining on human rights while maximizing
its positive impacts. HRIAs is different from Environmental Impact Assessments (EIA) in
that they are based on binding international human rights laws to which governments have
voluntarily committed themselves through signing and participation in international treaty
negotiations.They measure to what extent the project complies with human rights both in
terms of content and processes.
Furthermore,the issue of EIAs that is provided for under the draft Minerals Policy,is not
comprehensive, it simply sates that no significant mineral operation will be allowed
without an environmental and social assessment having been carried out, evaluated and
approved by the Government of Zimbabwe. However, the problem is that what
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constitutes “significant mineral operation“,has not been defined and can be variously
interpreted. It is therefore recommended that more specific terminology to describe
when an EIA will be required.The draft Mineral Policy should also clearly state that EIAs
would be required prior to mineral exploration rather than after mining has commenced,
as has been the case with some mining projects.
The draft Mineral Policy aims to create “Development Corridors” where mineral
exploitation will be used to operate growth in other sectors that includes agriculture and
forest production and industrial manufacturing.It is recommended that these initiatives be
subject to EIA or strategic EIA before they commence.
Secondly, the section on Transparency Benefits from Mining states that the Government
will ensure that communities that are or could be adversely affected by mining operations
derive regular and significant benefits from these operations.The listed benefits include
revenue allocation,access to employment and the provision of infrastructure for local use
among others. However what is not clear is whether communities living near that mine
need to prove that they are adversely affected by mining activities in order for them to gain
access to the benefits.It is also not clear how the communities' benefits will be shared.It is
recommended that the term adversely affected be clearly defined. Local communities in
mining areas that are directly affected by mining activities should have broad access to the
benefits.
Thirdly, several sections of the draft Minerals Policy including Developing with Broad
Based Participation states that public participation and constitutions are important and
will be required.However it is not clear how public participation and consultation will be
incorporated into mineral development projects, especially on who can participate, who
must be consulted and whether these projects require free,prior and informed consent.It
is recommended that public participation and consultation be initiated even earlier so that
communities can weigh in on whether or they want mining in their regions.
Fourthly, it is recommended that some areas should be declared off limits to mining
activities due to their environmental cultural, social or economic reasons.These areas
include conservancies, protected areas and world heritage sites.There are a lot of cases
where mining is taking place in protected areas like Hwange National Park for coal and the
mining of heavy sands in Mana Pools,which isWorld Heritage site.
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Fifthly,it is recommended that the policy should state that any stabilisation clauses included
in mining contracts should apply to fiscal provisions for a limited period of time and cannot
apply to other laws and policies like those pertaining to the environment, labour, access
to information and community rights.Ideally stabilisation clauses should be flatly rejected
for mining contracts.While stabilisation clauses are not necessarily bad perse as they help
in attracting the much needed Foreign Direct Investment (FDI), the failure by developing
countries like Zimbabwe to understand their implications and negotiate them wisely, has
resulted in them losing out on tax revenue. Tax revenues that should accrue to the
government are often impeded by stabilisation agreements or clauses, which essentially
lock in a fiscal system. As a result of poorly negotiated stabilization agreements,both the
good and the bad characteristics apply and will not adjust with changes in external factors.
A good example is a tax holiday. If a tax holiday is guaranteed under a stabilization
agreement/ clause, then no taxes will be paid during the tax holiday period even though
prices increase.
Sixthly with regards to fiscal provisions it is recommended that the policy require that the
envisaged new Mines and Minerals Act, clearly establish the fiscal regime that will govern
each mining agreement.This can be done through developing a model mining contract that
would be used in each negotiation.This will help reduce corruption and conflicts of interests
that have commonly characterized the negotiations of contracts in Zimbabwe. Examples
where such corruption and conflict of interest have been evident include the Marange
diamondminingcontractsandZimbabweIronSteelCompany(ZISCO)-ESSARdeal.
Seventhly, under the Equitable and Competitive Mineral Section, mining companies with
revenue above specified revenue threshold will be required to conduct audits. While this
requirement is good, it is recommended that every company with a mining contract in
Zimbabwe be required to conduct an audit and that a mine's revenue and profit be
declared. The Draft Policy requires that only practices that have encouraged transfer
pricing will be reviewed.This is not good enough especially when one takes into account
how difficult it is to detect transfer pricing by companies and trying to determine if it was
encouraged or not is even more difficult.
The draft Mineral Policy should require that a company would be taxed separately for each
project it develops in Zimbabwe,a practice that is commonly known as ring fencing. Ring
fencing refers to the practice of separating a taxpayer's activities and operations that limit
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consolidation of income and deductions. Ring fencing is very necessary when a mining
company has got more than one project or operations in a country.It is perfectly legal for
it to compile the accounts of its different projects although they are geographical separate
if the host country does not ring fence its operations. Failure to ring fence operations
encourages a company to shift loses from loss making entities to profitable activities
within the host country thereby reducing their tax obligations.The practice by companies
of sharing profits and losses across multiple projects should be prohibited. Ring fencing
helps to avoid potential delays in receipt of revenue by the government by disallowing
write offs that are incurred beyond a producing area. However, ring fencing should be
balanced with the consideration that it may act as a disincentive for mining companies to
invest in exploration activities beyond the project area and this can slow the development
of the mining sector.
The draft Minerals Policy should also require a company to demonstrate its financial and
technical capacity before it is allowed to bid for a concession and to disclose beneficial
ownership. This will help to screen those companies that are not serious about mining
but are just looking for a way to make a quick profit. Examples of mining companies in
Zimbabwe that have been accused of not being serious investors after getting mining
contracts include Canadile Miners and GyeNyame.The two companies got concessions to
partner the Zimbabwe Mining Development Corporation (ZMDC) to mine diamonds in
the Marange diamond fields in Chiadzwa.
In their applications for licences, the two companies misrepresented their technical and
financial capacities.As a result of Canadile Miners' misrepresentation regarding its financial
capacity, it is alleged that the Government lost about US $2 billion and the matter is
currently pending before the courts with the former directors facing fraud charges.
Government has since delisted Canadile mining and its special grant was taken over by
Marange Resources.GyeNyame got the licence to partner ZMDC on the understanding
that it was going to inject US$110 million into the partnership. However, out of the
expected amount, it only invested US$8 million. This has resulted in the Government
dissolving the partnership between ZMDC and GyeNyame and is scouting for a new investor.
Commendable as these efforts by Government to dissolve the partnerships maybe, it is
also evidence that not enough due diligence regarding their technical and financial
capacities was done when these two mining companies were chosen as partners of the
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ZMDC hence the need to make sure that it is a requirement under the draft Minerals
Policy.
Most of the mining companies mining in diamonds in Marange namely Mbada Diamonds,
Marange Resources,Anjin investments, Diamond Mining Company, Jinan and Kusena do
not have the financial resources and technical expertise for underground mining of
diamonds. Most of them are good at alluvial mining.The lack of financial resources and
technical expertise to do underground diamond mining has resulted in the Ministry of
Mines and Mining Development considering not renewing their licences when they lapse
with a view to having one diamond mining company that is capable of both alluvial and
underground diamond mining of diamonds.
Furthermore, the draft Minerals Policy should also provide for beneficial ownership.
Beneficial owner refers to the person (s) who directly or indirectly ultimately own or
control the company and benefits. He or she or they,are the ultimate recipients of profits
or other benefits that are generated by the corporate entity and in this case, the mining
company.It is recommended that a register or record of the entities that bid for,operate or
invest in mining activities in Zimbabwe be publicly available in the interest of promoting
transparency and accountability in line with the objectives of the draft Minerals Policy.
Eighthly,the proposed Minerals Development Board does not have any direct Community
Based Organisations and Civil Society Organisations participation and representation.
While the other stakeholders namely government, business, labour and academic
participate and are represented, CBOs and CSOs are conspicuous by their absence.The
failure to provide for the participation and representation of CSOs and CBOs is surprising
when one takes into account the fact that the draft Minerals Policy calls for tri-partite
partnerships that are mutually beneficial and calls for an inclusive Minerals Development
Board. The proposed composition is not inclusive of CBOs and CSOs and is reminiscent
of the current Mines and MineralsAct in which these stakeholders do not participate and
are not represented in the Mining Affairs Board. CSOs and CBOs are important
stakeholders in mining and should be represented and participate in this important policy
and decision making board.It is therefore recommended that the Board include CSOs and
CBOs in its composition. It is further recommended that the Board also include experts
on human rights,water resources,land rights,environment and taxation.
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The ninth point is that while the draft Minerals Policy makes provisions for transparency
and accountability and access to information,it is not clear how these will be implemented.
In other words, there are no practical strategies proposed that will be used in the
implementation of the policy. For example, there is no provision related to the oversight
role of parliament on contract negotiations, revenue use and management.The role of
parliament on these issues should be clearly stated and provided for. Furthermore, the
draft Mineral Policy should declare that mining agreements,licences and other documents
issued under the envisaged new Mines and Minerals Act and subsequent regulations,
should be public documents. The failure of the draft Minerals Policy to provide clear
strategies for implementation is contrasted with the provisions of the National
Environmental Policy and Strategies of 2009.It is very clear in its implementation strategy.
Apart from providing Guiding Principles,it also provides Strategic Directions.
Lastly, the draft Minerals Policy has some gaps regarding the negative social impacts of
mining especially as they relate to Gender, HIV and AIDS. Women are some of the
community members that are negatively affected by mining activities and these should be
clearly articulated. Furthermore, the country's Indigenisation and Economic
Empowerment Act calls for the participation of historically disadvantaged groups in the
mining sector.Women are among the historically disadvantaged groups but it is not clear
how they will participate.It is recommended that the draft Minerals Policy clearly state that
the Government will ensure that the mining industry will comply with the National
Gender Policy.
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CONCLUSION
The review has shown that despite some weaknesses,the draft Minerals Policy has some
good and progressive provisions that can help to ensure that Zimbabwe derives maximum
benefits from its mineral resources to fund its developmental needs. However, while
the draft Minerals Policy is a step in the right direction, it is important to note that a
policy is a statement of intent of what the Government plans to do in a given sector and
in this case,the mining sector. Rights accorded in a policy like the draft Minerals Policy,
are not enforceable and claimable in a court of law. To a larger extent, the
implementation of a policy is dependent on political will rather than legal provisions.
This principle on enforceability may explain why Zimbabwe is very good at developing
good policies,which are not equally backed by good laws.
The most important consideration is to ensure that the progressive provisions in the
draft Minerals Policy are properly and thoroughly concretised through a law and
regulations made thereunder.It is therefore imperative that the provisions of the draft
Minerals Policy are solidified through the development of a new and comprehensive
Mines and MineralsAct.
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Zimbabwe Environmental Law Association (ZELA)
No. 26B Seke Road, Hatfield, Harare
Tel: 573601; 573602; 573603
Email: zela@mweb.co.zw
Website: www.zela.org
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